Chapter VII. The Practical Side Of Noerr-Pennington

• Pages: 107-118

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CHAPTER VII

THE PRACTICAL SIDE OF NOERR-PENNINGTON

The Noerr-Pennington doctrine presents fascinating theoretical

issues regarding the intersection of the Sherman Act and the First

Amendment, and the development of a doctrine that has to balance

sometimes competing values. There is a practical side to Noerr, too, and

this chapter addresses how the Noerr-Pennington doctrine applies in

litigation and counseling situations.

A. Defense or Immunity and Does It Matter

In a litigation where Noerr-Pennington is an issue, one preliminary

issue to be considered is whether the Noerr doctrine is a true immunity,

or whether it is an affirmative defense. In general, an immunity is law-

based and designed to provide protection from suit, while an affirmative

defense is fact-based and designed to protect a party from damages.

1

As

a practical matter, a party waives an affirmative defense if it is not

included in the answer or first responsive pleading; an immunity is never

waived.

The majority of courts that have considered whether the Noerr-

Pennington doctrine is an immunity or a defense have concluded that

Noerr is an affirmative defense.

2

For example, in North Carolina

1. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 131, at

1032 (5th ed. 1984).

2. See, e.g., N.C. Elec. Membership Corp. v. Carolina Power & Light, 666

F.2d 50, 52 (4th Cir. 1981); We, Inc. v. City of Phila., 174 F.3d 322, 326

(3d Cir. 1999); Segni v. Commercial Office of Spain, 816 F.2d 344, 345-

46 (7th Cir. 1987); Acoustic Sys. v. Wen ger Corp., 207 F.3d 287 (5th Cir.

2000); Bayou Fleet, Inc. v. Alexander, 234 F.3d 852, 860 (5th Cir. 2000 );

IGEN Int’l v. Roche Diagnostics, 335 F.3d 303 ( 4th Cir. 2003).